![\"Orange](\"https:\/\/www.coveringyourads.com\/wp-content\/uploads\/sites\/38\/2023\/06\/Universal-Image-Supreme-Court--656x281.png\")
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On May 18, 2023, the United States Supreme Court ruled in favor<\/a> of famed rock photographer Lynn Goldsmith against the Andy Warhol Foundation for the Visual Arts, Inc.\u2019s (AWF),[1]<\/a> in a long-awaited decision impacting fair use under Section 107(1) of the Copyright Act.\u00a0The opinion written by Justice Sotomayor, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Jackson joined, held that the \u201cpurpose and character\u201d of AWF\u2019s commercial use of Warhol\u2019s portraits of Prince shared the same commercial purpose of the original photograph taken by Ms. Goldsmith and, as a result, did not constitute fair use.[2]<\/a> The Court\u2019s decision affirmed the ruling of the Second Circuit Court of Appeals, which held that the Warhol work was derivative of the original, and noted that \u201cthe new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character\u201d but that factor was not dispositive by itself.[3]<\/a> The Court found that the Warhol Foundation\u2019s licensing of the Orange Prince to Conde Nast did not have a sufficiently different purpose as the Goldsmith photograph because both were \u201cportraits of Prince used in magazines to illustrate stories about Prince.\u201d[4]<\/a><\/p>\n <\/span><\/p>\n Background<\/strong><\/p>\n The case concerns an orange silkscreen portrait of the artist formerly known as Prince created by Warhol, referred to as \u201cOrange Prince,\u201d which was created by Warhol from a black-and-white photograph taken by Goldsmith to illustrate an article in Newsweek<\/em>. In 1984, Goldsmith gave Vanity Fair<\/em> permission to use the photograph in a new commissioned purple silkscreen portrait by Warhol that appeared in the magazine\u2019s November issue. Unbeknownst to Goldsmith, Warhol also created fifteen other works based on the photograph, including Orange Prince.<\/p>\n In 2016, Vanity Fair<\/em> licensed Orange Prince from AWF for the cover of their commemorative issue about Prince.\u00a0Goldsmith was not paid or credited for this use. When Goldsmith issued a cease and desist letter claiming copyright infringement, AWF brought a declaratory judgment action asserting that its use of Goldsmith\u2019s photograph in Orange Prince was protected under the Copyright Act\u2019s fair use doctrine. While the District Court ruled in favor of AWF holding that the minimal modifications to the original Goldsmith photograph were transformative, the Second Circuit reversed.\u00a0The Second Circuit held that the fair use factors under Section 107 of the Copyright Act weighed in favor of Goldsmith, stating \u201cthe secondary work itself must reasonably be perceived as embodying an\u00a0entirely distinct artistic purpose<\/em><\/strong>, one that conveys a \u2018new meaning or message\u2019\u00a0entirely separate from its source material<\/em>.\u00a0. . . <\/strong>While we cannot, nor do we attempt to, catalog all of the ways in which an artist may achieve that end, we note that the works that have done so thus far have themselves been\u00a0distinct works of art that draw from numerous sources, rather than works that simply alter or recast a single work with a new aesthetic<\/em><\/strong>.\u201d[5]<\/a> Following the Supreme Court\u2019s decision in 2021 in Google LLC v. Oracle America<\/em>,[6]<\/a> the Second Circuit withdrew its opinion and issued a slightly\u00a0amended opinion. The Supreme Court granted certiorari in March 28, 2022, presenting the question of whether a work of art is \u201ctransformative\u201d for purposes of a fair use defense under the Copyright Act (17 U.S.C. \u00a7 107), \u201cwhen it conveys a different meaning or message from its source material. . . .\u201d<\/p>\n How the Court\u2019s Decision Impacts the Application of the Copyright Fair Use Defense<\/strong><\/p>\n Fair use is a statutory defense to copyright infringement that allows one to use copyrighted materials without the permission of the rightsholder under certain limited circumstances. Section 107 of the Copyright Act provides that \u201cfair use of a copyrighted work \u2026 for purposes such as criticism, comment, news reporting, teaching \u2026 scholarship, or research is not an infringement of copyright.\u201d[7]<\/a>\u00a0The statute sets forth the following four factors for courts to weigh in determining whether a use of a protected work constitutes a fair use:<\/p>\n In the Warhol<\/em> case, the Court focused only on the first factor and whether AWF\u2019s copying of the Goldsmith photograph was of a different purpose and character of use, including whether the use was commercial in nature.<\/p>\n Since the Supreme Court\u2019s decision in Campbell v. Acuff-Rose Music<\/em>,[9]<\/a> the test for determining the first factor is whether the new use of the original work \u201cadds something new, with a further purpose or different character, altering the first with new expression, meaning or message\u201d or \u201ctransforms\u201d the original work.[10]<\/a> The more transformative a work is, the more likely it is to be considered fair use.<\/p>\n AWF argued that its use of Orange Prince was transformative because Warhol conveyed a different meaning or message than Goldsmith\u2019s photograph. In particular, AWF contended that Goldsmith\u2019s photograph was intended to highlight Prince\u2019s vulnerability, while Warhol\u2019s piece depicted Prince as an iconic, larger-than-life character.[11]<\/a><\/p>\n However, the Supreme Court rejected these arguments, holding that when an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against application of the fair use defense.[12]<\/a>\u00a0In this case, Goldsmith\u2019s original photograph and the AWF\u2019s allegedly infringing use shared the same purpose — both illustrate a Vanity Fair <\/em>magazine story about Prince.[13]<\/a> AWF\u2019s use was commercial because AWF licensed the artwork for a fee.[14]<\/a> Justice Sotomayor noted that Campbell v. Acuff-Rose Music<\/em> could not be interpreted to mean that fair use defense could be applied to works so broadly as to include works that share substantially the same purpose and use, including the commercial nature.\u00a0\u201cOtherwise, \u2018transformative use\u2019 would swallow the copyright owner\u2019s exclusive right to prepare derivative works, as many derivative works that \u2018recast, transfor[m] or adap[t]\u2019 the original, add new expression of some kind.\u201d[15]<\/a>\u00a0The Court held, as a result, that this first \u201cfair use\u201d factor weighed in favor of Goldsmith and affirmed the Second Circuit\u2019s ruling.[16]<\/a> <\/p>\n In an acrimonious dissent, Justice Kagan and Chief Justice Roberts criticized the majority\u2019s \u201clack of appreciation\u201d for the way Warhol\u2019s works differed from Goldsmith\u2019s photograph and noted that: \u201cIn a recent [2021]decision, this Court used Warhol paintings as the perfect exemplar of a \u2018copying use that adds something new and important\u2019\u2014of a use that is \u2018transformative,\u2019 and thus points toward a finding of fair use.\u201d[17]<\/a>\u00a0The dissent further accused the seven-Justice majority of inhibiting the ability of writers and artists to draw upon prior works and warned that the decision \u201cwill stifle creativity of every sort.\u00a0It will impede new art, music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.\u201d[18]<\/a><\/p>\n There is no doubt that appropriation artists and content creators will need to take the Court\u2019s decision in the Warhol<\/em> case into account when assessing whether a proposed use of an existing protected work constitutes a fair use. Creators and clearance counsel will need to look beyond the question as to whether the secondary use is transformative and conveys a new meaning or message, and consider each of the fair use factors, including whether the intended use has the same or similar purpose to that of that of the original and whether such use is commercial in nature.<\/p>\n Still, it is important to note that the Supreme Court was careful to limit its decision to the specific context of AWF\u2019s commercial use of \u201cOrange Prince\u201d by licensing it to Vanity Fair<\/em> for a fee. This means that the first fair use factor is not dispositive and that creators can still argue that a work is transformative to the extent a new and creative use differs from that of the original work.<\/p>\n FOOTNOTES<\/p>\n [1]<\/a> Andy Warhol Foundation for the Visual Arts, Inc., v. Goldsmith<\/em>, 598 U.S. ____ (2023).<\/p>\n [2]<\/a> Slip op. 25. <\/p>\n [3]<\/a> Slip op. 2.<\/p>\n [4]<\/a> Slip op. 4.<\/p>\n [5]<\/a> The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 19-2420, 110 (2d Cir. 2021).<\/p>\n [6]<\/a> 593 U. S. __.<\/p>\n [7]<\/a> 17 U.S.C. \u00a7 107.<\/p>\n [8]<\/a> Id<\/em>.<\/p>\n [9]<\/a> 510 U. S. 569 (1994)<\/p>\n [10]<\/a> Id<\/em>. at 579.<\/p>\n [11]<\/a> Slip op. 28.<\/p>\n [12]<\/a> Slip op. 20.<\/p>\n [13]<\/a> Slip op. 21.<\/p>\n [14]<\/a> Slip op. 24.<\/p>\n [15]<\/a> Slip op. 5.<\/p>\n [16]<\/a> Slip op. 25.<\/p>\n\n